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Zelenovic v. O'Malley

September 7, 2010

NEBOJSA ZELENOVIC, PETITIONER,
v.
JOHN O'MALLEY, ACTING UNITED STATES MARSHAL FOR THE NORTHERN DISTRICT OF ILLINOIS, RESPONDENT.



The opinion of the court was delivered by: Judge David H. Coar

MEMORANDUM OPINION AND ORDER

Nebojsa Zelenovic ("Zelenovic" or "Petitioner") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking relief from a certification of extraditability issued by the Honorable Arlander Keys, United States Magistrate Judge for the Northern District of Illinois. For the reasons stated below, Zelenovic's petition is DENIED.

BACKGROUND

The Republic of Serbia seeks the extradition of Nebojsa Zelenovic to answer to a charge of homicide. Evidence provided by the Serbian government, and submitted to the magistrate judge below, indicates that the following events led to Serbia's current petition for extradition. On July 2, 2000, Zelenovic and 16-year-old Milos Dobric ("Milos") were involved in a minor traffic accident near a market in New Belgrade where Milos's family sold produce. Milos was moving his family's car, when he accidentally backed into Zelenovic's truck. Milos's mother, Vesna Dobric ("Vesna"), arrived to the scene, and an altercation ensued. Zelenovic angrily demanded payment for the damage to his truck, struck both Milos and his mother, and kicked the Dobrics' car before getting into his truck and driving away. Milos and Vesna informed Branko Dobric ("Branko"), Milos's father and Vesna's husband, about the altercation.

The next day, July 3, 2000, Milos and Branko were in the market, when Milos informed his father that he spotted Zelenovic. Milos and Branko then approached Zelenovic and confronted him about the prior day's incident. An argument ensued, as Branko head-butted Zelonvic and challenged him to a fight. Zelenovic, whose nose was bloodied, retreated to his butcher stall in the market, and Branko and Milos returned to their produce stall.

A short time later, Zelenovic emerged from his meat shop carrying a revolver. Dragan Stolic, a friend and co-worker of Branko, realized that Zelenovic was heading toward Branko and intervened by placing himself between the two men. Attempting to defuse the situation, Stolic and several others implored Zelenovic to put his gun away and retreat. Instead of complying, Zelenovic fired two shots into the air. The crowd scattered. Standing just five steps from Branko, Zelenovic taunted Branko before shooting him at close range. When the bullet struck Branko, he stumbled into a stall, attempting to hide from Zelenovic. Zelenovic then fired and shot Branko again.

Milos, who saw Branko fall to the ground, began screaming that Zelenovic had killed his father. Zelenovic then pointed his gun at Milos and fired from two meters away. Milos jumped aside, avoiding the bullet, and Zelenovic fled from the scene. Friends drove Branko to a nearby health center, but he died en route.

Shortly after Branko's murder, in July 2000, the district public prosecution office in Belgrade, Serbia submitted to the investigating magistrate of the district court a request to conduct investigative proceedings against Zelenovic. The request was based on the "well founded suspicion" that Zelenovic had committed the criminal offense of homicide. On August 21, 2000, the investigating magistrate issued a warrant for Zelenovic's arrest. In early December 2008, police in Westchester, Illinois took Zelenovic into custody. Zelenovic, who is unlawfully in the United States, was transferred to the administrative custody of the United States Immigration and Customs Enforcement ("ICE"). On December 16, 2008, the United States government, acting on behalf of the Republic of Serbia, filed a complaint for Zelenovic's provisional arrest with a view toward his extradition before Magistrate Judge Keys in the Northern District of Illinois. In a diplomatic note dated February 16, 2009, the Embassy of the Republic of Serbia formally requested that the United States extradite Zelenovic to Serbia. In support of this request, Serbia submitted its August 21, 2000 warrant for Zelenovic's arrest, along with evidence gathered by the district public prosecutor in Belgrade. That evidence, which was presented to the court below, included Serbian investigative reports and statements from Milos Dobric, Vesna Dobric, Dragan Stolic, and three other eye witnesses: Sasa Stamekovic, Dragomir Radovanovic, and Vukovic Njegos. Although each witness identified Zelenovic as the owner of the nearby meat stall where the attacker ran to retrieve his revolver, apparently none of the witnesses was asked to identify Zelenovic from a photograph. All of the witnesses' statements support the version of events detailed above.

On February 12, 2010, Magistrate Judge Keys held a hearing in this matter to consider the parties' written submissions and arguments. Neither side called any live witnesses. On March 21, 2010, Magistrate Judge Keys issued a Memorandum Opinion and Order and Certification of Extraditability. As detailed in that order, Judge Keys found that: (1) Zelenovic is extraditable for the offense of attempted homicide, and (2) there is probable cause to certify that finding to the United States Secretary of State, as required under 18 U.S.C. § 3184.

On June 17, 2010, Zelenovic filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He raises three grounds for relief: (1) The magistsrate judge erroneously found that a "duly authenticated copy of the warrant of arrest" had been produced as expressly required by Article III of the Treaty; (2) The evidence adduced at the extradition hearing was insufficient to support a finding of probable cause that Zelenovic was the accused wanted in Serbia on this extradition; and (3) The evidence adduced at the extradition hearing was insufficient to support a finding of probable cause that Zelenovic committed murder under the Serbian statute, which expressly requires the negation of "manslaughter in the heat of passion."

STANDARD OF REVIEW

Extradition rulings are not directly appealable and may only be reviewed by way of a petition for a writ of habeas corpus. In re Assarsson, 635 F.2d 1237, 1240 (7th Cir. 1980) (citing Collins v. Miller, 252 U.S. 364, 369 (1920)). "Because the writ is not the equivalent of an appeal, it may be granted only in limited circumstances." Assarsson, 635 F.2d at 1240. As habeas corpus is "not a means for rehearing what the magistrate has decided," review is limited to three issues: (1) whether the magistrate judge had jurisdiction; (2) whether the offense charged is extraditable under the relevant treaty; and (3) whether the evidence presented established probable cause to extradite. Id. (citing Fernandez v. Phillips, 268 U.S. 311, 312 (1925)); see also Sacirbey v. Guccione, 589 F.3d 52, 63 (2d Cir. 2009). In the extradition context, probable cause is defined as "evidence that would support a reasonable belief that [the petitioner] was guilty of the crime charged." Lindstrom v. Gilkey, No. 98 C 5191, 1999 WL 342320, at *9 (N.D. Ill. May 14, 1999) (internal citations and quotation marks omitted). A magistrate judge's finding of probable cause will be upheld if "there is any competent evidence to support her finding." Bovio v. United States, 989 F.2d 255, 258 (7th Cir. 1993) (citing Assarsson, 635 F.2d at 1246).

ANALYSIS

I. Ground I: Whether the Arrest Warrant Satisfies the ...


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